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  • Unreported Judgment

Darrel William Graham v Queensland Racing Integrity Commission

 

[2019] QCAT 198

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Graham v Queensland Racing Integrity Commission [2018] QCAT 198

PARTIES:

DARREL WILLIAM GRAHAM

(applicant)

 

 

QUEENSLAND RACING INTEGRITY

COMMISSION

(respondent)

APPLICATION NO/S:

OCR174-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 July 2019

HEARING DATE:

  1. September 2018
  2. September 2018

3 October 2018

23 July 2019

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Aughterson

ORDERS:

  1. The decision of the Queensland Racing Integrity Commission is set aside as to penalty.
  2. In substitution, Darrel William Graham is suspended from holding a drivers licence and a trainers licence for 12 months, commencing 2 weeks from the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Harness Racing Trainer – where charge of failure to present a horse free of prohibited substances – where urine sample was above the cobalt threshold – whether distinction to be drawn between organic and inorganic cobalt – whether certifications as to cobalt readings valid and admissible – where carelessness in the feeding and supplement regime –whether disqualification or some lesser penalty appropriate 

Acts Interpretation Act 1954 (Qld), s 32C

Australian Harness Racing Rules, r 188A, r 189, r 190, r 191, r 259

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28(3)(b)

Racing Act 2002 (Qld), s 78(2), s 79, s 91(1), s 132, s 145, s 147

Racing Integrity Act 2016 (Qld), s 246

Briginshaw v Briginshaw (138) 60 CLR 336

Cole v Harness Racing Victoria [2018] VCAT 1930

Day v Harness Racing NSW [2014] NSWSC 1402  

Day v Sanders [2015] NSWCA 324

Demmler v Harness Racing Victoria Racing Appeals and Disciplinary Board [2017] VCAT 600 

Harness Racing Victoria v Chisholm [2017] VCAT 1620

Harness Racing Victoria v Ross Graham (unreported,

Racing Appeals and Disciplinary Board,10 August 2017)  

Hooper v Queensland Racing Integrity Commission [2017] QCAT 236

Hope v Racing Victoria Limited (No 2) (Review and

Regulation) [2018] VCAT 1688

Kavanagh v Racing Victoria Limited (No 2) (Review and

Regulation) [2018] VCAT 291

McDonough v Harness Racing Victoria [2008] VCAT 291

Morrisey v Queensland Racing Integrity Commission

[2018] QCAT 161

Queensland Racing Integrity Commission v Gilroy

[2016] QCATA 146

R v Trochym [2007] 1 SCR 239

Racing Victoria v Kavanagh [2017] VSCA 334

Rattray v Queensland Racing Integrity Commission [2018] QCATA 39

RVL Stewards v Peter Moody (Racing Appeals and

Disciplinary Board – 16 March 2017, penalty 17

March 2016

Scott v Queensland Racing and Integrity Commission (No

2) [2018] QCAT 301

Tuite v The Queen [2015] VR 196

Wallace v Queensland Racing [2007] QDC 168

Weeks v Queensland Racing Integrity Commission [2017] QCAT 345

Xuereb v Racing Victoria Limited (Review and

Regulation) [2019] VCAT 473

APPEARANCES &

REPRESENTATION:

 

Applicant:

J E Murdoch QC, instructed by O’Connor Ruddy & Garrett Solicitors

Respondent:

R J Anderson QC, instructed by Landers & Rogers Lawyers

REASONS FOR DECISION

  1. [1]
    On 30 May 2015, the gelding Mafuta Vautin was placed first in race 5 at Albion Park. A pre-race urine sample taken from Mafuta Vautin was later analysed and certified as having a cobalt level in excess of the then threshold of 200 micrograms per litre: see rule 188A(2)(k) of the Australian Harness Racing Rules (‘AHRR’).[1]
  2. [2]
    The applicant, Darrell Graham, was charged under AHRR Rule 190, which, in part, provides:
    1. (1)
      A horse shall be presented for a race free of prohibited substances.
    2. (2)
      If a horse is presented for a race otherwise than in accordance with sub rule (1) the trainer of the horse is guilty of an offence.
  1. [3]
    On 25 August 2016, the stewards found that the applicant had infringed the AHRR and he was disqualified for 15 months. At an internal review the decision of the stewards was confirmed. From that decision, review is sought before the Tribunal pursuant to s 246 of the Racing Integrity Act 2016 (Qld). By s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits.
  2. [4]
    It is not in dispute that at all relevant times the applicant was the trainer of Mafuta Vautin and that he presented the gelding for race 5 at Albion Park.[2] As is elaborated upon below, what is in issue is, first, whether the presence of a prohibited substance has been established and, second, if it is established, what penalty is appropriate in the circumstances of the case.
  3. [5]
    What is a prohibited substance, the testing of horses for its presence, and how its presence might be proved are set out in the AHRR. One issue relevant to proof in the present case is the validity of the testing and certifications purportedly made in accordance with the AHRR. As will be seen from the provisions of rule 191, set out below, that issue is important, as the rule provides that a certification in accordance with rule 191(1) is prima facie evidence while a second, in accordance with rule 191(2), is conclusive evidence of the presence of a prohibited substance. It remains that, by rule 191(6), the fact that a horse was presented for a race not free of a prohibited substance may be established in other ways. Once that presence is established, strict liability arises, as rule 190(4) provides that an offence under rule 190 is committed regardless of the circumstances in which the prohibited substance came to be present in the horse.[3]

The AHRR

  1. [6]
    The references to the AHRR are to the provisions that were operative at all times relevant to the present case.
  2. [7]
    Rule 188A(1) lists prohibited substances by reference to their capability of causing an action and/or effect within a given list of mammalian body systems and, further, by reference to listed categories of substances. Rule 188A(2) then provides that certain substances when present at below specified levels are excepted from the provisions of rule 188A(1), including, at rule 188A(2)(k): 

Cobalt at a concentration at or below 200 micrograms per litre in urine.  

  1. [8]
    Rule 189 allows the Stewards to carry out tests at any time and place to determine whether a prohibited substance is in a horse, including by taking a urine sample for the purposes of testing and examining.[4]
  2. [9]
    Important to the present case, rule 191 provides for the evidential effect of approved certifications as to the presence of a prohibited substance in a horse:
    1. (1)
      A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine, saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse is prima facie evidence of the matters certified.
    2. (2)
      If another person or drug testing laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in sub rule (1) and certifies the presence of a prohibited substance in the sample or specimen that certification together with the certification referred to in sub rule (1) is conclusive evidence of the presence of a prohibited substance.  
    3. (3)
      A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse at a meeting shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the horse was presented for a race not free of prohibited substances.
    4. (4)
      A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the prohibited substance was present in or on the horse at the time the blood, urine, saliva, or other matter or sample or specimen was taken from the horse.
    5. (5)
      Sub rules (1) and (2) do not preclude the presence of a prohibited substance in or on a horse, or in blood, urine, saliva, or other matter or sample or specimen, or the fact that a prohibited substance had at some time been administered to a horse, being established in other ways.
    6. (6)
      Sub rule (3) does not preclude the fact that a horse was presented for a race not free of prohibited substances being established in other ways.
    7. (7)
      Notwithstanding the provisions of this rule, certificates do not possess evidentiary value nor establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed.
  3. [10]
    As noted, the first question in the present case is whether the presence of a ‘prohibited substance’ has been established and, if so, the consequence of such a finding in terms of rule 191 AHRR.

Submissions and Discussion

  1. [11]
    The submissions of the applicant rest on the validity or evidential value of the four certificates of analysis issued in relation to this matter by the Racing Science Centre (‘RSC’) on 26 June 2015 and 5 January 2016, the ChemCentre on 7 July 2015 and Racing Analytical Services Limited (‘RAS’) on 8 March 2018. Those submissions are addressed in turn, below. All testing detected cobalt at levels above the threshold: the first (in date order) detected 342 ug/L; the second 390 ug/L, the third greater than 400 ug/L, and the fourth greater than 200 ug/L.[5]
  2. [12]
    A preliminary issue is the status of cobalt as a prohibited substance. AHRR rule 188A(1)(a) provides that a substance is prohibited if it is ‘capable at any time of causing either directly or indirectly an action or effect, or both an action and effect, within one or more of the following mammalian body systems’. The list that follows includes the blood system. Rule 188A(1)(b) further provides that substances falling within a given list, which includes haematopoietic agents, are prohibited substances.
  3. [13]
    Rule 188A(2) then provides a list of substances which, when present at or below the specified levels, are excepted from the provisions of rule 188A(1).   Included in the list, at rule 188A(2)(k) is ‘cobalt at a concentration at or below 200 micrograms per litre in urine or 25 micrograms per litre in plasma’. That evidently presumes that cobalt is a prohibited substance in terms of rule 188A(1).[6]
  4. [14]
    In any event, the expert evidence of Professor Mills[7] and Professor Chapman,[8] which I accept, is that cobalt is capable of directly or indirectly affecting the body system of a horse; in particular, the blood system and that it is a haematopoietic agent.[9]
  5. [15]
    A number of submissions were made by the applicant in relation to the validity of the four certificates of analysis. 

Certificate of 26 June 2015

  1. [16]
    In relation to the certificate issued by the RSC on 26 June 2016, three submissions are made.
  2. [17]
    First, it is said that the certificate of analysis does not stipulate the presence or quantity of inorganic cobalt.[10] This submission is based on an argument that a distinction should be drawn between organic and inorganic cobalt and that it is only inorganic cobalt that causes an action or effect within the meaning of AHRR rule 188A(1)(a) or that is a substance that falls within one of the categories listed at rule 188A(1)(b). Inorganic cobalt is a mineral which when present in a molecule with carbon, such as with vitamin B12,[11] is termed organic.[12] Inorganic cobalt occurs as a trace element,[13] including in the soil, and will be absorbed naturally by horses. However, it seems that racehorses have at times been given cobalt chloride as an additional feed supplement, whether for the purpose of improving performance or otherwise.[14] 
  3. [18]
    In relation to the distinction between inorganic and organic cobalt in the present circumstances, reliance is placed on a certificate of Dr Karen Caldwell, which states that inorganic cobalt can stimulate the formation of red blood cells.[15] In that context, it is said that the high level of cobalt in the present case was caused primarily by the administration of Tripart, administered intravenously the day before the horse was presented as well as earlier in the week.[16] Tripart includes vitamin B12, of which cobalt in organic form is an active component. Professor Mills questioned whether such high levels of cobalt could arise from that source, given that the Tripart was said to be administered on the day before presentation and given that vitamin B12 disappears very quickly with the urine.[17]
  4. [19]
    Be that as it may, no distinction is made between organic and inorganic ‘substances’ in rule 188A(1), nor is any such distinction made in the reference to cobalt in rule 188A(2)(k). Also, the evidence of Professor Mills, which I accept, is that organic cobalt, in the form of vitamin B12, influences the production of red blood cells and as such is capable of directly or indirectly causing an effect within a relevant body system of a horse.[18] Professor Chapman agreed, but with the qualification that B12 affects the body system only when it is in a state of deficiency.[19] Presumably the then permissible threshold of 200 micrograms took account of the fact that there could quite properly be some absorption of cobalt whether in organic or inorganic form.[20]
  5. [20]
    Second, it is submitted that the analysis of the sample of urine was unreliable because of the extreme dehydration of the horse and the consequent concentration of the urine. However, rule 191 provides that a certification as to the presence of a prohibited substance is prima face evidence of the matters certified and a second certification is conclusive evidence. No qualification is made as to the condition of the horse at the time of testing. Also, again, as explained by Professor Mills, while the degree of concentration of the urine can affect the analysis, the allowance of a cobalt threshold of 200 micrograms per litre in urine took account of the fact that horses will present with a wide range of urinary concentrations.[21]  In other words, the bar is set at 200 micrograms per litre on account of such factors. Professor Mills and Professor Chapman agreed that the fact of concentration of urine did not impact the capacity to measure the cobalt level.[22]
  6. [21]
    Third, it is submitted that at the time that the sample was delivered to the RSC on 1 June 2015, its accreditation did not then extend to testing for cobalt in urine. It obtained its accreditation to carry out those tests on the morning of 25 June 2015.[23] It was submitted that part of the analysis was carried out prior to 25 June and on that basis the certificate of analysis was inadmissible. In the certificate of analysis it is recorded that ‘the sample was analysed between 1 June and 26 June 2015’.[24] It was signed on 26 June 2018.  For the moment, I leave to one side the provisions of rule 191(6), which provides that rule 191(3), which allows for the evidential status of approved certifications, does not preclude the presence of a prohibited substance being established in other ways.
  7. [22]
    Samantha Nelis, Principal Chemist and an accredited analyst at the RSC,[25] signed an affidavit in this matter and gave evidence at the hearing. She deposed that between 2 and 3 June 2015 an aliquot part of the sample underwent ‘screening analysis’ for cobalt and arsenic and on 3 June it was ‘flagged as suspect of being above the threshold for cobalt’.[26] Ms Nelis gave evidence that that aliquot would have been disposed of after screening and that the subsequent ‘confirmation analysis’ was of a fresh aliquot.[27] She deposed that on 25 June 2015 notification was received that the scope of RSC’s accreditation had been updated to include the analysis of equine urine for cobalt and arsenic.[28] Between the evening of 25 June and 26 June 2015 a separate aliquot of the sample underwent ‘confirmation analysis’ by analysts employed by RSC.[29] In evidence, Ms Nelis said that the confirmation analysis commenced at 8.30 pm 25 June 2015 and a certificate of analysis was issued on 26 June 2015.[30] Cobalt

was found to be present in the sample at a mass concentration of 340 micrograms per litre in the urine.[31] 

  1. [23]
    It is clear from the evidence that the ‘screening analysis’ and the ‘confirmation analysis’ serve quite different purposes. As deposed by Ms Nelis, the aliquot used for the screening analysis was merely ‘flagged as suspect of being above the threshold for cobalt’.[32] She also said in evidence that the screening analysis is not witnessed ‘because the volume of them is so high, they all just occur as per our normal procedure’ and that the whole process is ‘not a single activity’.[33] 
  2. [24]
    Rule 191(1) AHRR is expressed in terms of a certificate from an approved person or laboratory which ‘certifies’ the presence of a prohibited substance. Rule 191(2) is expressed differently. That provides that if an approved person or laboratory ‘analyses’ and ‘certifies’ the presence of a prohibited substance then the deeming provision comes into effect. Rule 191(1) seems to suggest that the crucial point of reference in relation to approval is the time of certification,[34] while with rule 191(2) it is at the time of analysis and certification. On that basis, for the purposes of rule 191(1) it is the certification which is the appropriate focal point and must be from an approved person or laboratory. The meaning of ‘analysis’ for the purposes of rule 191(2) and, in particular, when the analysis commences is discussed below in the context of the certificate of 5 January 2016.  
  3. [25]
    For the purposes of rule 191(1), even if the analysis, as distinct from the certification, must take place prior to accreditation, in relation to the certification of 26 June 2015 both the ‘confirmation analysis’ and the certification took place after approval had been given. In my view, the fact of the earlier ‘screening analysis’ is not relevant. As noted above, it is evident that the purpose of the screening process is to separate out those samples that require further analysis; a further analysis on which the certification is based. 
  4. [26]
    That interpretation also seems to be consistent with the terms of rule 191(7). That provides that certificates do not possess evidentiary value where it is proved that the ‘certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed’. It is to be imagined that it was not intended that rule 191(7) would invalidate an analysis, in the present case the ‘confirmation analysis’, that is carried out in accordance with the rules and prescribed procedures and where the process for that analysis was not ‘materially flawed’, simply on the basis that some earlier screening analysis, of a different aliquot of the sample, is questionable.  
  5. [27]
    Accordingly, in my view, the arguments as to the invalidity of the certificate of 26 June 2016 have not been made out. 

Certificate of 7 July 2015

  1. [28]
    In relation to the certificate issued by ChemCentre on 7 July 2015, in addition to submissions relating to dehydration and the distinction between organic and inorganic cobalt, which have already been addressed, two other submissions are made.
  2. [29]
    First, it was submitted that ChemCentre was not an accredited facility, under s 132 of the Racing Act 2002 (Qld) as then required, at the time of analysis and certification on 7 July 2015. It did not receive accreditation under that Act until 22 September 2015. This was not disputed and is evident from the affidavit of and evidence given by Charles Russo from ChemCentre.[35] Accordingly, it was not a certification for the purposes of Rule 191(1) or 191(2). Consistent with Rule 191(6), it remains that it might be considered as evidence and going to proof by conventional means that the horse was presented for a race not free of prohibited substances. That issue is discussed separately, below. 
  3. [30]
    Second, it was submitted that the analyst was not an ‘analyst’ within the meaning of, then, s 145 of the Racing Act 2002 (Qld) and, as such, dealing with the reserve sample amounted to ‘interference’ with a sample contrary to s 145(2). It was then submitted that the reserve sample was thereby unlawfully compromised and any subsequent testing of it by the RSC or RAS was compromised.[36] Leaving to one side the intended reach of s 145(2), which created an offence and allowed for ‘reasonable excuse’, there is nothing in the Rules which precludes sending a sample for analysis to a laboratory not approved by the Controlling Body. Indeed, by rule 191(6), the availability of prima facie and conclusive proof of the presence of a prohibited substance under rule 191, does not preclude proof being established in other ways. The effect of rule 191(6) is discussed below. It was not submitted that for other reasons the use of ChemCentre was inappropriate and, in terms of rule 191(7), other than the making of the bald assertion, it is not said why as a consequence the certification or process was ‘materially flawed’. Charles Russo deposed that the ChemCentre laboratory has been accredited by the National Association of Testing Authorities, Australia to test for and analyse cobalt and other elements in urine since 2008.[37] Also, ChemCentre was accredited as a secondary facility under the Racing Act 2002 (Qld) from 22 September 2015.[38]

Certificate of 5 January 2016

  1. [31]
    In relation to the certificate issued by the RSC on 5 January 2016, three of the four issues raised by the applicant have been addressed above: the issue of dehydration, the distinction between organic and inorganic cobalt, and the submission that the sample had been compromised by the unlawful interference with the sample by ChemCentre.
  2. [32]
    It was also submitted that there was no evidence that the certificate was signed by the person who performed the analysis. Relevant here is rule 191(2). That rule provides:

If another person or drug testing laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in sub rule (1) and certifies the presence of a prohibited substance in the sample or specimen that certification together with the certification referred to in sub rule (1) is conclusive evidence of the presence of a prohibited substance. (emphasis added)

  1. [33]
    Given that a second certification validly made pursuant to rule 191(2) will constitute conclusive evidence of the presence of a prohibited substance, it is required that the second analysis and certification be undertaken by another approved person or drug testing laboratory; that is, other than the approved person or laboratory issuing the certificate under rule 191(1). In the present case, as the initial certification was also by RSC it was necessary that another approved person analyse and certify the presence of the prohibited substance. That gives rise to two question. First, does both the analysis and certification have to be carried out by the same person and, second, what is meant by the term ‘analyses’? In relation to the second question, given that there may be a number of steps in the process it is a question of which of those steps form part of the analysis and whether all relevant steps were undertaken by an ‘approved’ person for the purposes of rule 191(2). 
  2. [34]
    In relation to the first question, note was made in Rattray v Queensland Racing Integrity Commission[39] of the difference in terminology as between rule 191(1) and rule 191(2). The verb ‘analyses’ does not appear in rule 191(1). Rather, that sub-rule is framed in terms of requiring a certificate from an approved person or laboratory which certifies the presence of a prohibited substance in the tested sample. On the other hand, conclusive evidence arises under rule 191(2) where ‘another’ person or laboratory analyses the sample and certifies the presence of a prohibited substance. It is stated in Rattray that “the sub-rule appears to contemplate that the person certifying is one and the same person who performs the analysis of the sample”.[40] However, because this was not a ground of appeal and was only belatedly raised in argument, and because there was no evidence as to what is actually involved in an ‘analysis’, the Tribunal did not determine that issue.[41]
  3. [35]
    On the other hand, in the present case there was evidence as to the process of analysis. That is referred to below. In my view, there does not appear to be any reason why the person conducting the analysis need be one and the same as the person issuing the certificate, providing they both have relevant approvals under rule 191 and that neither was involved in the rule 191(1) analysis and certification.[42] The evident object of rule 191(2) is to ensure that those involved in the second analysis and certification had no involvement with the first. As noted in Rattray, the very purpose of Rule 191(2) ‘is to provide an independent confirmation of the first certificate’.[43] That is achieved where neither the certifier nor analyst were involved in the first testing process. Also, it is noted that rule 191(2) allows testing by another person or drug testing laboratory. Read separately in relation to a laboratory, the sub-rule simply requires that the laboratory analyses the sample and certifies the presence of a prohibited substance

and does not specify that the person signing the certificate must be the same person as the one who conducted the analysis. In the present case, the first RSC analysis was conducted by Warwick Turner while the certificate was issued by Mark Jarrett.[44] The named analyst for the 5 January 2016 certification was Patrick Zabrocki while the certificate was issued by Samantha Nelis.[45] On that basis, different people were involved in each process.

  1. [36]
    The second question concerns the meaning of the term ‘analyses’ in rule 191(2). It is not defined in the Rules. As is noted above, where there may be a number of steps in the process, and where more than one person might be involved, there is a question of which of those steps forms part of the analysis. That is important because only an ‘approved’ person may analyse the sample for the purposes of rule 191(2). Given the very serious consequences of rule 191(2), the establishment of conclusive evidence that the horse was presented for a race not free of prohibited substances,[46] in my view any step in the analysis that is integral to the testing of the sample or which directly impacts the result recorded in the certificate should be considered to be part of the analysis and must be conducted by an ‘approved’ person or under their direct and active supervision, for it to be said that the approved person analysed the sample within the meaning of the rule. It has been concluded, above, that in the circumstances of this case the analysis envisaged by the rule would not include the ‘screening analysis’ but would include relevant steps, in the sense noted above, of the ‘confirmation analysis’.
  2. [37]
    Samantha Nelis gave evidence, which I accept, as to the process of analysis leading to the issue of the certificate of 5 January 2016. That evidence indicates that while she had all of the information resulting from the analysis and made her own assessment of the data prior to her signing of the certificate,[47] she was not involved with the preparation of the sample or of the instrument that produced the data. Ms Nelis stated that the analysis was carried out in accordance with the laboratory’s ‘quality assured chemical analysis procedures’, which had been independently assessed and certified by the National Association of Testing Authorities (‘NATA’) against international standards.[48]
  3. [38]
    The preparation of the sample and the instrument were conducted by Patrick Zabrocki, who Ms Nelis refers to as the ‘analyst’.[49] Ms Nelis gave evidence as to the steps taken in the process of analysis:[50] the sample is aliquoted; the aliquot is diluted with acid and an ‘internal standard’ is added; the testing instrument is turned on and warmed up; the sample and ‘quality control’ are placed on the instrument; the instrument is given ‘the sequence of what the standards are and where they’re located on the sample rack and what the levels of the standards are … also … where all the other samples are and where to look for them’; the instrument performs the analysis and produces a set of results; the ‘operating analyst’ checks the data and makes sure that they are consistent; the results are then given to the ‘quality control chemist’ who conducts

their own analysis of the results and ensures that everything is consistent with procedures;[51] all of the data, in the present case, then went to Ms Nelis who independently analysed the data ‘that was produced by the instrument and the staff”.[52] The certificate was then issued. Ms Nelis noted that under that process, it is ‘triple checked’.[53] Ms Nelis also stated that the normal procedure is that the person who does the “whole analysis” would do the preparation of the aliquot: ‘sample preparation through to the testing of the instruments’.[54]  

  1. [39]
    It is evident that the preparation prior to analyses by the instrument, which takes about an hour to an hour and a half,[55] is an important part of the process. That process commenced on the evening of 25 June 2015.[56] Ms Nelis stated that her involvement was confined to ‘a full analysis of the instrument results’ and that it was the ‘analyst’ Patrick Zabrocki who took the preparatory steps leading to and including the placing of the sample on the instrument and dealt with any ‘issue with the instrument’.[57] The intermediate quality assurance was undertaken by the Acting Senior Chemist Adelaide Bailey.[58] 
  2. [40]
    At the very least, it is evident that Mr Zabrocki independently undertook important steps in the process of analysis. He was not a person ‘approved’ by the Controlling Body under rule 191(2).[59] While Ms Nelis was approved, she did not have any involvement with or oversee the preparatory steps outlined above. She did not certify and analyse the presence of a prohibited substance, in the sense of undertaking or overseeing all steps that might have impacted the outcome of the test. In my view, it follows that the analysis was not carried out by an approved person for the purposes of rule 191(2).
  3. [41]
    As with the certificate of 7 July 2015, and consistent with Rule 191(6), it remains that the certificate of 5 January 2016 might be considered as evidence and going to proof by conventional means that the horse was presented for a race not free of prohibited substances. That issue is discussed separately, below.

Certificate of 8 March 2018

  1. [42]
    The issues of dehydration and the organic/inorganic cobalt distinction were also raised in relation to the certificate issued by RAS on 8 March 2018. Those matters are addressed above. 
  2. [43]
    The submission made in relation to the certificates of 7 July 2015 and 5 January 2016 that the sample had been compromised and that subsequent testing was also compromised, was raised also in relation to the certificate of 8 March 2018. For the same reasons as stated above, that argument is rejected.  
  3. [44]
    As with the certificate of 7 July 2015 and 5 January 2016, it was submitted that there was no evidence that the certificate was signed by the person who performed the analysis. In relation to the certificate of 5 January 2016 it was concluded, above, that there is no requirement that the certificate be signed by the person who conducted the analysis. The other issue raised in relation to the certificate of 5 January 2016, that another ‘approved’ person must analyse the sample, does not cause difficulty in relation to the certificate of 8 March 2018. In relation to the certificate of 5 January 2016 the same laboratory was involved as for the initial certification of 26 June 2015. For that reason, the person conducting the analysis of 5 January 2016 not only could not be the same analyst as for the earlier analysis but also had to be ‘approved’ by the Controlling Body. On the other hand, the analysis and certification for the certificate of 8 March 2018 involved another ‘approved’ drug testing laboratory. It was not in dispute that at the relevant time RAS held accreditation to test for cobalt.[60]
  4. [45]
    On that basis, pursuant to rule 191(3), the certificates of 26 June 2015 and 8 March 2018 constitute conclusive evidence that the horse was presented for the race not free of prohibited substances. 

Rule 191(6)

  1. [46]
    In the event, contrary to my conclusion, that the certificates of 26 June 2015 and 8 March 2018 do not comply with rule 191 and, accordingly, do not constitute prima facie or conclusive evidence, there remains the question of what reliance if any can be placed on the certificates, including those of 7 July 2015 and 6 January 2016, that do not so comply. Rule 191(3), in part, provides:

A certificate furnished under this rule … shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the horse was presented for a race not free of prohibited substances.

Rule 191(6) then provides:

Sub rule (3) does not preclude the fact that a horse was presented for a race not free of prohibited substances being established in other ways.

  1. [47]
    In Racing Victoria v Kavanagh,[61] the Victorian Court of Appeal considered Rules of Racing which were in terms similar to rule 191(1). There was no provision equivalent to rule 191(6). It was held that the applicable rule did not preclude proof of the presence of a prohibited substance by conventional means.
  2. [48]
    In Kavanagh, Maxwell P stated that there is nothing in the rules to suggest that the prima facie evidence provision was intended to exclude conventional methods of proof and that “all the indications are to the contrary”.[62] Maxwell P also stated:[63]

Most importantly, the procedures laid down by AR178D are self-evidently facilitative. Comparable evidentiary provisions under other regulatory regimes are designed to relieve the regulatory authority of having to lead evidence from witnesses – including expert witnesses – in order to prove the contravention. Instead, a procedure is laid out leading to the production of certificates which constitute either prima facie evidence or conclusive evidence of the matters certified.

It would be a remarkable thing, in my view, if non-compliance with one of the procedural steps in the ‘short cut’ procedure under AR 178D prevented the stewards from establishing the relevant contravention by conventional means of proof. I am unable to discern any policy rationale which might explain such an unusual restriction of modes of proof. …

All of the policy objectives of the Rules would seem to point in precisely the opposite direction. That is, the importance of preserving the integrity of racing, and ensuring the health and safety of both horses and jockeys, points compellingly in favour of the stewards being able to rely either on a short-cut to proof or on proof by ordinary methods. As I have said, the intention to make the certification procedure the exclusive method of proof would need to have been expressed in the clearest terms before I would have accepted that this was what the drafters intended.

It is evident that rule 191(6) reinforces the approach taken in Kavanagh, not only because of the terms of that sub-rule, but also because rule 191(3) refers to a certificate furnished ‘under this rule’ as providing prima facie or conclusive evidence.  When read in conjunction with rule 191(6) it suggests that where the certificate is not furnished ‘under this rule’ then, subject to rule 191(7),[64] it might form part of the evidence used to establish proof through conventional means. While the Tribunal is not bound by the rules of evidence,[65] in the normal course of events evidence would also be required going to the veracity of the testing process and the qualifications and experience of those involved. Where the certificate complies with rule 191, that need is obviated.

  1. [49]
    In the present case there was comprehensive affidavit and oral evidence as to the process undertaken and as to those involved in relation to each of the four certifications.[66] The challenges to the certifications primarily went to the question of whether there was compliance with rules 191(1) and 191(2). Each of those submissions is addressed above. Other than as noted above, no question was raised as to the standing of the laboratories or individuals involved in the processes or as to the quality or appropriateness of those processes. Evidence provided by affidavit and oral testimony support the conclusion that appropriate processes were followed in the testing of the samples and in reaching the conclusions reflected in the certificates.
  2. [50]
    Accordingly, even discounting rule 191(3), on all of the evidence before the Tribunal I am satisfied that Mafuta Vautin was presented by the applicant for race 5 at Albion Park on 30 May 2015 not free of a prohibited substance. Where reliance is placed on conventional modes of proof, the standard of proof is the civil standard on the balance

of probabilities, allowing for the principle in Briginshaw v Briginshaw.[67] In the present case, the evidence in support of a breach of rule 190(1) is compelling. 

Penalty

  1. [51]
    It is well settled that any penalty should reflect the protective purpose of legislation of this nature.[68] Specifically in relation to the present legislation, the objective is to ensure that the integrity of racing is protected, racing is conducted on a level playing field, is conducted safely with regard to the horse, and is conducted fairly from the perspective of the betting public.[69] As was noted in Day v Harness Racing NSW’,[70] ‘it is important that the sport be regulated with a view to encouraging punters to place bets on the basis of a realistic belief that they have a chance of winning that is not affected by unfair tactics’. 
  2. [52]
    While the rules reflect a decision that cobalt is prohibited above a specified threshold, given the objectives outlined above the effect of the substance on both the health and performance of horses is relevant to penalty.[71] As with some of the more recent cases, no clear evidence was produced in the present case that cobalt does enhance performance and provide an unfair advantage or that it is harmful to horses. Professor Chapman and Professor Mills agreed that ‘there is no specific evidence that cobalt at any level can enhance performance in racehorses’.[72] However, Professor Mills noted that cobalt has been shown to enhance performance in other mammalian species.[73] Professor Chapman and Professor Mills also agreed that that there is no specific evidence that cobalt at any concentration poses health risks to horses, though Professor Mills noted one of the potential risks is cancer which can take time to develop.[74] On the other hand, some of the earlier decisions seem to proceed on the assumption that cobalt is harmful to horses and enhances performance.[75] It remains that cobalt is a prohibited substance and a breach of these rules negatively impacts the reputation of the industry.[76]
  3. [53]
    Consideration must also be given to specific and general deterrence; to deter the individual from further engaging in that conduct and also to deter others.[77] Also important are the degree of culpability for any actions that gave rise to the breach, prior history (whether positive or negative), and the conduct of the person in relation to the matter.[78] Conduct may include a guilty plea, which could reflect insight and remorse.[79] In relation to culpability, in Wallace v Queensland Racing McGill DCJ referred to three categories of cases which, in ascending order, could justify a more severe penalty: cases where there is an innocent explanation for the presence of the prohibited substance, cases where there is no explanation for the elevated reading, and cases where there is an explanation and one that shows ‘moral blameworthiness’.[80]
  4. [54]
    Finally, the penalty should be no more than is necessary to achieve the objective of the legislation.[81] Reliance should also be placed on penalties in comparable cases.[82] Consistency is important in order to ensure equality of treatment and to assist those involved in the industry to anticipate the consequences that will flow from given conduct.[83] 
  5. [55]
    In the present case, the respondent did not submit that there was any intention to present the horse not free of a prohibited substance or that there was an intention to gain a particular benefit. However, it was submitted that the applicant had been reckless in his behaviour.[84] While, the applicant stated that he had no explanation as to why the horse returned a positive swab to cobalt,[85] it was his case that it was likely a product of the administration of Tripart. Tripart includes vitamin B12, of which cobalt in organic form is an active component.
  6. [56]
    It was acknowledged by the respondent that the evidence as to the circumstances in which the applicant came to administer Tripart was not contested.[86] Mr Graham gave evidence that he used Tripart in an endeavour to combat muscle issues.[87] This was done on the advice of his veterinarian, Dr David Lovell.[88]
  7. [57]
    It is difficult to draw firm conclusions as to the cause of the recorded level of cobalt in the urine in the present case. As noted, it was the position of the applicant that a likely cause was vitamin B12, in the form of Tripart, which, he stated, was last administered 24 hours prior to the race. Professor Chapman, the applicant’s expert witness, was of the view that the feeding and supplementation regime[89] ‘probably’ resulted in the above-threshold level of cobalt, including through accumulation of cobalt in the tissues of the horse.[90] This was contested by Professor Mills, the respondent’s expert witness, on the basis that vitamin B12 would ‘disappear very quickly with the urine’ and that the high reading would only occur if the Tripart were given a lot closer to the race than the 24 hours indicated by Mr Graham.[91] On the other hand, Ross Wenzel, a Senior Hospital Scientist employed by NSW Health Pathology, gave evidence of tests undertaken by him of the urine sample, which indicated both high levels of creatinine and cobalt in vitamin B12.[92] Mr Wenzel was of the view that cobalt in the vitamin B12 could be retained where the horse is dehydrated.[93] He deposed that on the basis of the analytical method adopted by him the creatinine levels indicated that the horse was ‘notably dehydrated’ and, in those circumstances, the vitamin B12 could have been retained in the urine.[94] He concluded that dehydration coupled with accumulation of cobalt through previous Tripart injections ‘present a plausible scenario to support Mr Graham’s administration claims’.[95] That is, that the Tripart was last administered 24 hours prior to the race. 
  8. [58]
    However, Professor Hibbert testified that there had been no appropriate validation of the analytical method adopted by Mr Wenzel, using appropriate standards and controls.[96]  In other words, the validity of the method had not been demonstrated. It was accepted that there had been no relevant accreditation of the process.[97] It is also noted that Professor Chapman testified that the extent to which water intake affects creatinine levels is unknown.[98] As with Mr Wenzel, Professor Chapman was of the view that dehydration and cobalt accumulation were ‘plausible’ causes of the high cobalt levels, but acknowledged that he had ‘no grounds to be able to prove it’.[99]  In relation to dehydration and access to water, Darrell Graham deposed that he did not know how much water the horse had drunk during the day prior to the race.[100] 
  9. [59]
    In relation to the conclusion by Professor Chapman that the high cobalt levels could be attributable to retention of vitamin B12 because of dehydration and accumulation of cobalt through ongoing use of Tripart and the feed regime, and Professor Mill’s conclusion that the vitamin B12 retention was unlikely given that it quickly dissipates in the urine, unless the Tripart were administered closer to racing than the 24 hours indicated,[101] Professor Chapman concluded that ‘we’re both hypothesising’.[102] 
  10. [60]
    I am not able to determine one way or the other precisely what caused the high level of cobalt in the present case; that is, the extent to which the feeding regime or the Tripart, and the timing of its administration, separately impacted the result. In Tuite v The Queen,[103] the Victorian Court of Appeal noted that ‘the touchstone of reliability for scientific evidence must be trustworthiness, and trustworthiness depends on validation’, and, with reference to a decision of the Supreme Court of Canada,[104] added:

Special care must be taken, of course, in a case where the proposed expert evidence is based on ‘new science’ properly so-called.  In such a case, the party proposing to rely on the expert evidence will need, as the Supreme Court in Canada has said, to establish that the underlying science is ‘sufficiently reliable to be admitted in a court of law’.

  1. [61]
    However, I am satisfied that the applicant had, at the very least, displayed a considerable degree of carelessness in the way he managed the horse leading up to the race on 30 May 2015. The reasons for that conclusion are as follows. First, to the knowledge of Mr Graham, Tripart was administered at three times the manufacturer’s recommended dose.[105] While that was on the recommendation of his veterinarian Dr Lovell,[106] Dr Lovell had not recommended its use on the day prior to the race.[107] Dr Lovell testified that he would not have recommended its use on the Friday night because it would not be of any advantage.[108] While Mr Graham stated that he had trained over 100 winners and has never had a problem with cobalt, he acknowledged that he had never previously administered an equivalent level of Tripart.[109] 
  2. [62]
    Second, there was no evident reason to use Tripart on 29 May 2015, the day prior to the race in question. Dr Lovell deposed that he recommended Tripart following blood tests conducted in late February 2015.[110] Those tests revealed that the horse had extremely high AST levels which was an indication of muscle issues after strenuous exercise.[111] However, Mr Graham deposed that a further blood test performed on 28 May 2015 revealed that the horse’s AST levels were then within range.[112] That begs the question of why Tripart was administered on the following day.
  3. [63]
    Third, in circumstances where Mr Graham, an experienced trainer, knew at the relevant time that cobalt was a significant issue for the racing industry and that he ought to be careful in its use and to some extent knew that his feeding and supplementation regime contained cobalt,[113] he did not take any steps to ascertain the cobalt levels in the horse nor seek the advice of his veterinarian Dr Lovell as to the content or effect of his feeding regime.[114] It was only after the elevated reading that

he closely checked the supplements and feeding regime for cobalt, including the feeding bags which clearly had cobalt written on them.[115] 

  1. [64]
    On the other hand Mr Graham has been a successful trainer, operating since 1985. He has one earlier breach of rule 190(1), when in 2008 one of his horses was treated with cortisone and returned a positive swab. He pleaded guilty to the charge and was fined $3,000.[116] There have been no other blemishes on his record. In the present case, in relation to the use of Tripart to some extent he relied on the advice of his veterinarian Dr Lovell, who deposed that he did not believe that it was harmful or that it would enhance performance.[117]
  2. [65]
    In relation to the appropriate penalty, a number of cases have been considered:
    1. (a)
      Morrisey v Queensland Racing Integrity Commission:[118] administering a prohibited substance, cobalt, detected in a sample taken on race day; greater than 200 mcg/L where the threshold was 100 mcg/L. The labelling on the container of the relevant product claimed that it was free of prohibited substances, though a list of active ingredients included cobalt sulphate. It was found that Mr Morrisey was ‘negligent in the limited extent of his enquiry into the contents of the product’.[119] He cooperated ‘fully and candidly’, entered a plea of guilty at the earliest available opportunity, and had an unblemished training record over a 50year period. The offence was considered ‘to be at the less serious end of the scale’.[120] A penalty of suspension for 9 months suspended after 5 months for a period of 12 months was imposed.
    2. (b)
      Scott v Queensland Racing Integrity Commission (No 2):[121] presentation of a horse with cobalt levels above the allowable threshold; 280 mcg/L. It was found that the cobalt levels were attributable to the feeding regime and supplements given intravenously. It was further found that Ms Scott was aware that the supplements contained cobalt and that she was careless (referred to as ‘moderate carelessness’)[122] in her feed and supplement regime. She was aware of the concerns about cobalt and had neither obtained veterinary advice nor conducted periodic tests. A plea of not guilty was entered, though the application to review before the Tribunal was ultimately confined to the issue of penalty. There were two prior offences, committed three days apart, which resulted in fines of $4,000 each. A penalty of 3 months suspension and a fine of $6,000 was imposed. The decision as to penalty has been appealed.
    3. (c)
      Weeks v Queensland Racing Integrity Commission:[123] presentation of a horse with cobalt levels in excess of the allowable threshold; 360 to 400 mcg/L. Though Mr Weeks had other disciplinary history, it was at the lower end of seriousness and did not involve prohibited substances. The case report makes no reference to culpability, other than noting that no observation is made, favourable or adverse, in relation to insight. The Tribunal accepted the joint position of the parties that there be disqualification for 6 months followed by suspension for a further period of 9 months, with that period of suspension fully suspended.
    4. (d)
      Hooper v Queensland Racing Integrity Commission:[124] presentation of a horse with cobalt levels in excess of the allowable threshold; 339 to greater than 400 mcg/L. There were three separate charges, relating to different horses and different race days. It was found that the high levels of cobalt was the result of one or more supplements or preparations being administered at levels collectively in excess of the manufacturer’s recommendations and/or much closer to the race times that the minimum 48 hours indicated by Mr Hooper. While, it was not found that the presentation not free of prohibited substances was deliberate, it was inferred that it was at least the result of a ‘lack of due care’.[125] Mr Hooper had a lengthy prior disciplinary history, including a previous prohibited substance conviction. Counsel for the parties agreed that disqualification was the appropriate penalty, disagreeing only on the period of disqualification.[126] A penalty was imposed of 12 months disqualification for each offence, three months of each offence to be served concurrently, giving an aggregate disqualification period of 30 months.
    5. (e)
      RVL Stewards v Peter Moody:[127]  administering a prohibited substance which is detected in a sample taken from the horse; 360 to 410 mcg/L. It was found that there was significant carelessness, for which Mr Moody was responsible, in relation to the operation of his stable. This was particularly so in relation to the administration of cobalt, as well as general feeding, supplementation and injection procedures. His system of supervision was inadequate ‘to say the least’.[128] By a decision of the Racing Appeals and Disciplinary Board, Mr Moody was suspended for 12 months, of which 6 months was suspended. 
    6. (f)
      Harness Racing Victoria v Chisholm: [129] presentation of a horse with cobalt levels in excess of the allowable threshold; 286 to 290 mcg/L. It was accepted that the trainer did not knowingly or deliberately administer additional cobalt and that she did not know, until told by the stewards, that the commercial supplement she had been using contained cobalt and that she took reasonable precautions to ensure that the horse was presented free of prohibited substances. She had purchased and used the product on the advice of her veterinarian. However, while the Tribunal was unable to make any conclusive findings as to the probable cause of the high level of cobalt, it found that the high level of cobalt later found in samples taken from the contents of three containers in the stables ‘is of obvious relevance’.[130] The trainer had pleaded guilty to the charge and had been cooperative. She had a prior offence. While the Tribunal noted that ‘in general terms’ cobalt related offences ‘will usually mean disqualification’,[131] it was concluded that in the circumstances suspension, not disqualification, for 12 months was appropriate.
    7. (g)
      Harness Racing Victoria v Ross Graham:[132] presentation of a horse with cobalt levels in excess of the allowable threshold; 298 mcg/L. There was a plea of not guilty. The trainer had an unblemished record of 25 years.[133] His licence as a trainer was suspended by the Racing Appeals and Disciplinary Board for 15 months.
    8. (h)
      Demmler v Harness Racing Victoria:[134] presentation of a horse with cobalt levels in excess of the allowable threshold; between 350 and 372 mcg/L. The Tribunal was not satisfied that that the level of cobalt found in the horse’s urine was attributable to ignorance or that it was explicable by reference to the amount of cobalt found in the feed and supplements. It was further held that there was no support for the hypothesis that the cobalt levels could be attributable to bioaccumulation. Also, poor records were kept so that there was uncertainty as to what precisely had been administered and Mr Demmler had made conflicting statements in that regard and as to what dosages had been given. It was concluded that the only possible explanations ‘are the administration of an injectable therapeutic cobalt containing product, or the administration of a high concentration form of cobalt at some time prior to the time of sampling’.[135] It was concluded: ‘I consider this to be a serious example of a presentation offence, one where innocence or inadvertence is expressly rejected’.[136] By way of mitigation, Mr Demmler had a previously unblemished record in a harness racing career of over 20 years and had pleaded guilty to the charges. The review was on the matter of penalty. A penalty of 12 months suspension of Mr Demmler’s trainer and driver licences was imposed.
    9. (i)
      Cole v Harness Racing Victoria:[137] presentation of a horse with cobalt levels in excess of the allowable threshold; 184 mcg/L, where the threshold was 100 mcg/L. Mr Cole stated that the horse would have received Tripart two days before the swab, but not on race day and not on the day before, and thought that the cobalt may have come from the soil.[138] The Tribunal accepted expert evidence that the reported treatment regime was unlikely to have resulted in the detected cobalt levels and that it was highly unlikely that it would have arisen from the cobalt concentration in the soil.[139] It was concluded that ‘while no deliberate wrongdoing has been proven, the evidence does not discharge the onus Mr Cole has, to prove reduced or absent culpability’.[140] Mr Cole pleaded guilty. He had a prior fine of $500 for ‘a race day administration matter’.[141] A penalty of 12 months suspension of Mr Cole’s trainer and driver licences was imposed.
      1. (j)
        Xuereb v Racing Victoria Limited (Review and Regulation):[142] administering a prohibited substance, cobalt, detected in a sample taken on race day’; 240 to 251 mcg/L. While it was accepted that Mr Xuereb was unaware that the product in question contained cobalt, it was found that it was an unregistered product obtained from an unauthorised dealer, it was marketed as increasing the athletic performance of horses, administration of the product contained double the amount of cobalt as the recommended injection dose of the comparable registered product, was administered without any veterinarian advice, was surreptitious in that it was not recorded in the treatment diary, and occurred in circumstances where cobalt has no therapeutic benefits and its administration can be a significant welfare issue for horses. It was held that Mr Xuereb had been reckless: he did not make enquiries or seek information regarding the content of the product, despite knowing of the controversy in relation to cobalt. It was added that it was ‘open to infer that, that by administering the product on race day, he hoped or intended to improve (the horse’s) performance’.[143] While there was a plea of guilty, it was also found that for some time he was ‘not open or honest with the stewards’.[144] A penalty of disqualification for 6 months was imposed.
  1. [66]
    While reference has been made in some of the cases to a ‘usual’ penalty of disqualification,[145] that is not apparent from the more recent cases noted above. To the extent that there has been a shift in relation to penalties, this might in part be attributable to a change in understanding or uncertainty as to the impact of cobalt on the performance and welfare of horses.[146] 
  2. [67]
    In relation to the present matter, I take into account the various factors relevant to penalty that have been outlined above. Also, while Mr Graham cannot be given the credit that may arise from a plea of guilty, he was entitled to test the various issues raised in his application for review. While no two cases are precisely the same, there is some commonality as to the level of culpability in the cases listed above where a penalty of suspension has been imposed. They are broadly analogous to the circumstances in Mr Graham’s case. In my view, a penalty of suspension is equally appropriate here. As noted in Morrisey v Queensland Racing Integrity Commission,[147] while suspension does not have the broad impact of disqualification in terms of rule 259,[148] it is a severe penalty. It deprives the person affected of that aspect of their livelihood for the period of suspension and by interrupting an enterprise it could have an ongoing impact even after the period of suspension has been served, including the blemish on his record.[149]
  3. [68]
    The Dictionary to the AHRR defines ‘suspension’ in relation to a licensed person to mean ‘the temporary or permanent withdrawal of all rights provided by any licence issued by a Controlling Body’. It is not clear whether the reference to ‘any licence’ is intended to indicate all licences issued to a person or only any licence in relation to which the suspension is stated to relate.[150] The meaning of this provision was raised belatedly in the proceedings and was not the subject of fully considered submissions.[151] However, for the reasons given below, it is not necessary for me to determine that question.
  4. [69]
    As to the effect of suspension, rule 90A(2.7) AHRR provides:

The holder of a trainer’s licence:

  1. (a)
    Grade C, is licensed to prepare, educate and exercise a horse, but cannot trial it or nominate it to a race
  2. (b)
    Grade B, is licensed to train a horse which the person owns or partly owns or which is owned by the person’s spouse, other domestic partner, parent, sibling or child, or any horse approved by the Controlling Body upon the written application of the person;
  3. (c)
    Grade A, is licensed to train any horse

In the Dictionary to the AHRR, ‘Training’ ‘includes the preparation, education and exercising of a horse to race, but not the mere process of keeping a horse in good health’. It is also implicit by the exclusion of nominating a horse for a race in relation to a Grade C licence, that the right to nominate is one of the rights given to the holder of a Grade B or A licence.[152] 

  1. [70]
    I have reached the conclusion that the appropriate penalty in the present case is to suspend Mr Graham from holding licences to train and drive a horse for 12 months, effective two weeks from the date of this order. Even leaving to one side the arguable incongruity in allowing a suspended trainer to drive and be seen to be driving a horse

in a race, mindful of the objectives of ensuring the integrity of and public confidence in the racing industry and the principle of general deterrence, in my view the suspension of both licences is appropriate given the nature and circumstances of the breach.

  1. [71]
    The orders of the Tribunal are that the decision of the Queensland Racing Integrity Commission is set aside as to penalty and, in substitution, Darrel William Graham is suspended from holding a drivers licence and a trainers licence for 12 months, commencing 2 weeks from the date of this order.

Footnotes

[1] As to the applicability and effect of the Rules, see the, then, Racing Act 2002 (Qld), ss 78(2), 79, 91(1). The Act was significantly amended in July 2016.

[2] The applicant held an A Grade Trainer’s licence issued by the Queensland Racing Integrity Commission.

[3] No defence of honest and reasonable mistake of fact is available: Day v Sanders [2015] NSWCA 324.

[4] AHRR r 189(7).

[5] Exhibit 7, affidavit of Samantha Nelis of 13 October 2017, [24] and [34], annexure SN1 (certificate of 26 June 2015), annexure SN3 (certificate of 5 January 2016); exhibit 12, affidavit of Charles Ivan Russo of 30 October 2017, [26], annexure CR6 (certificate of 7 July 2015); exhibit 6, affidavit of Naomi Selvadurai of 13 September 2018, [24], annexure NS5 (certificate 8 March 2018).

[6] Compare the deeming provision considered in Day v Harness Racing NSW [2014] NSWSC 1402, [115]. That provision provided that where cobalt is at a level of 200 micrograms per litre in urine it is deemed to be a prohibited substance. It was stated in Day at [143] that the provision served ‘to put beyond doubt’ that cobalt at or above the specified concentration was a prohibited substance.

[7] Professor of Veterinary Pharmacology, Faculty of Science, University of Queensland.

[8] Professor of Pharmacy, University of New England; Emeritus Professor of Pharmacy, Monash University; former Dean of the Faculty of Pharmacy, Monash University.

[9] Exhibit 11, Second Expert Conclave Report , 2 October 2018, [9]; Affidavit of Professor Paul Mills dated 12 October 2017, filed in the Tribunal 1 November 2017, page 2 at [1], and page 3 at [4] and [5]; statement of Professor Colin Chapman dated 11 December 2017, filed in the Tribunal 20 December 2017, [10]; Exhibit 2, statement of Professor Colin Chapman dated 14 July 2016, pp 170-171; Exhibit 4, annexure KC5, Certificate of Dr Karen Caldwell, 6 January 2016; Transcript 3-54. See also Transcript 2-12 to 2-13.

[10] Applicant’s Summary of Issues, [2(i)]; Submissions for the Applicant, 2 October 2018, [18]- [28].

[11] Transcript 2-12.

[12] Ibid.

[13] Ibid 2-18. 

[14] Ibid 1-45.

[15] Exhibit 4, annexures KC1, KC5. See also Transcript 2-11 to 2.13. Dr Caldwell did not specifically say that only inorganic cobalt has that effect. Though see Transcript, 2-12 to 2-13. 

[16] Exhibit 2, p 94; Transcript 1-56 to 1-58. 

[17] Transcript 3-30. See also exhibit 10, p 2-3 of the Expert Conclave Report.

[18] Transcript 3-52 to 3-54, 3-63 to 3-65.

[19] Ibid. See also Exhibit 11, question 9.

[20] See Day v Harness Racing NSW [2014] NSWSC 1402, [25] for discussion of the evidence to that effect in that case.

[21] Transcript 3-34 to 3-38. See also Transcript 2-20. 

[22] Exhibit 11, question 6; Transcript 3-32 to 3-34, 3-40, 3-43.

[23] Exhibit 2, p 331-340; Transcript 1-20.

[24] Exhibit 7, affidavit of Samantha Nelis, annexure 1.

[25] Exhibit 1.

[26] Exhibit 7, affidavit of Samantha Nelis, [19].

[27] Transcript 2-31, 2-37.

[28] Exhibit 7, affidavit of Samantha Nelis, [20].

[29] Ibid [21].

[30] Ibid [23].

[31] Ibid [24].

[32] Ibid [19].

[33] Transcript 2-31, 2-42.

[34] Then s 147 of the Racing Act 2002 (Qld) set out the procedure after analysis, including as to the content of the ‘notice of results’, to whom the notice was to be delivered, and a certificate signed by an accredited analyst which included specified information.

[35] Exhibit 12, [12]-[13]; Transcript 2-49.

[36] In relation to the RSC, the testing of 26 June 2015 was of the A sample, while the testing of 5 January 2016 was of the reserve or B sample: see Transcript 1-7.

[37] Exhibit 12, [10].

[38] Ibid [12].

[39] [2018] QCATA 39, [68]-[75].

[40] Ibid [71].

[41] Ibid [74]-[75].

[42] In relation to use of the term another ‘person’ or ‘laboratory’, words in the singular include the plural: Acts Interpretation Act 1954 (Qld) s 32C.

[43] Rattray v Queensland Racing Integrity Commission [2018] QCATA 39, [72].

[44] Exhibit 2, supplementary bundle tab [16]; Exhibit 1 para [24], annexure 1; Transcript 2-25, 2-32

[45] Exhibit 2, supplementary bundle tab [16]; Exhibit 7 para [34], annexure 3; Transcript 2-41.

[46] See rule 191(3).

[47] Transcript 2-41, 45, 46.

[48] Exhibit 7, [31]-[32]; Transcript 2-24, 39.

[49] Transcript 2-41.

[50] See also the evidence, to similar effect, of Naomi Selvadurai from RAS as to what is involved in the process of analysis: Transcript 1-30.

[51] The quality control chemist was Adelaide Bailey: Transcript 2-41.

[52] Transcript 2-28.

[53] Ibid 2-41.

[54] Ibid 2-31

[55] Ibid 2-33.

[56] Ibid 2-33.

[57] Ibid 2-39 to 2-41.

[58] Ibid 2-41; Exhibit 2, supplementary bundle tab [16].

[59] Exhibit 7. See also exhibit 8.

[60] Transcript 1-18; Exhibit 6, [10]. The certificate of analysis was signed by the Racing Operations Manager, Naomi Selvadurai: Exhibit 6 annexure 5. 

[61] [2017] VSCA 334.

[62] Ibid [9].

[63] Ibid [80]-[83]. See also per McLeish JA, [100], per Cavanough AJA, [168]-[170].

[64] Though see Hooper v Queensland Racing Integrity Commission [2017] QCAT 236, [69]-[75].

[65] Queensland Civil and Administrative Tribunal Act 20019 (Qld), s 28(3)(b).

[66] In relation to the certificates of 26 June 2015 and 5 January 2016, see affidavit of Karen Caldwell, exhibit 4 and Transcript, 2-7 to 2-22; affidavits of Simon Stephens at exhibit 5 and Transcript at 1-5 to 1-25; affidavit of Samantha Nelis at exhibit 7 and Transcript at 2-23 to 2-47. In relation to the certificate of 7 July 2015, see affidavit of Charles Russo, exhibit 12 and Transcript, 2-47 to 2-50. In relation to the certificate of 8 March 2018 see affidavit of Naomi Selvadurai, exhibit 6 and Transcript, 1-26 to 1-34.

[67] (1938) 60 CLR 336. As to the standard of proof, see ‘Policy for decision making by stewards’ Queensland All Codes Racing Industry Board), exhibit 2 pp 423-426. The policies and rules of racing are statutory instruments: Racing Act 2002(Qld), s 79.  See also Hooper v Queensland Racing Integrity Commission [2017] QCAT 236, [76]-[87].

[68] Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146, [24]; Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161, [22]-[24]; Harness Racing Victoria v Chisholm [2017] VCAT 1620, [19]; Demmler v Harness Racing Victoria [2017] VCAT 600, [52]; Cole v Harness Racing Victoria [2018] VCAT 1930, [14].

[69] Harness Racing Victoria v Chisholm [2017] VCAT 1620, [20]; Demmler v Harness Racing Victoria [2017] VCAT 600, [52]. See also Racing Act 2002 (Qld), s 4.

[70] [2014] NSWSC 1402, [13].

[71] Harness Racing Victoria v Chisholm [2017] VCAT 1620, [26]. 

[72] Expert Conclave Report, exhibit 10, question 2; Expert Conclave Report, exhibit 11, question 9; Transcript 1-37.

[73] Ibid. 

[74] Expert Conclave Report, exhibit 10, question 8; Transcript 1-37. See also Report annexed to Affidavit of Professor Mills filed 1 November 2017, [6].

[75] For a general discussion of the background leading to the introduction of the prohibition of cobalt, see Day v Harness Racing NSW [2014] NSWSC 1402, [12]ff. See also Demmler v Harness Racing Victoria [2017] VCAT 600, [15]-[17], [49]-[52], [74].

[76] Also, in Demmler v Harness Racing Victoria [2017] VCAT 600, [49]-[50], it was noted that a relevant consideration is the state of knowledge as to the impact of cobalt at the time of the offence. 

[77] Harness Racing Victoria v Chisholm [2017] VCAT 1620 [21].

[78] Ibid [22]-[23].

[79] Ibid [23]; Cole v Harness Racing Victoria [2018] VCAT 1930, [16].

[80] [2007] QDC 168, [68]-[69]. See also McDonough v Harness Racing Victoria [2008] VRAT 6; Kavanagh v Racing Victoria Limited (No 2) (Review and Regulation) [2018] VCAT 291, [15]. In Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930, [22] it was suggested that categories two and three ‘may or may not end up being similar … every case depending on its own individual facts’.

[81] Harness Racing Victoria v Chisholm [2017] VCAT 1620, [24].

[82] See Wallace v Queensland Racing [2007] QDC 168, [67]; Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930, [19]. 

[83] Harness Racing Victoria v Chisholm [2017] VCAT 1620, [25].

[84] Transcript 3-68. 

[85] Affidavit of Darrel Graham of 21 July 2016, [50], exhibit 2, [50].

[86] Ibid.

[87] Transcript 1-56, 1-57.

[88] Exhibit 3, affidavit of David Lovell of 1 September 2018, [11]; Transcript 1-46.

[89] Affidavit of Darrel Graham of 21 July 2016, [50], exhibit 2, [39]-[41].

[90] Exhibit 10, first expert conclave report, question 5.

[91] Ibid; Transcript 3-30, 3-56.

[92] Exhibit 13, reports prepared 17 May 2018 and 29 August 2018; exhibit 14; Transcript 3-13 to 3-26.

[93] Exhibit 13, Expert Report of Ross Wenzel of 29 August 2018, [15]-[28].

[94] Ibid [24], [28].

[95] Ibid [24].

[96] Transcript 3-9 to 3-10, 3-27 to 3-28.

[97] Ibid 3-24 to 3-25.

[98] Ibid 3-40.

[99] Ibid 3-56.

[100] Affidavit of Darrel Graham of 21 July 2016, exhibit 2 p 95, [44].

[101] Transcript 3-30.

[102] Ibid 3-62. See also Transcript at 3-37 to 3-39. Professor Mills agreed that changes in urine concentration can affect the quantity of certain components in urine: Exhibit 11, question 3. However, he thought it ‘unlikely’ that the vitamin B12 remained in the urine because of dehydration: Transcript 3-31.

[103] (2015) VR 196. See also Hope v Racing Victoria Limited (No 2) (Review and Regulation) [2018] VCAT 1688, [35]-[39].  

[104] R vTrochym [2007] 1 SCR 239, [33].

[105] Transcript 1-57. Compare his affidavit of 21 July 2016, where he stated that he always uses supplements in accordance with the manufacturer’s recommendations: exhibit 2, p 96 [50].

[106] Transcript 1-46.

[107] As to when it was administered, see Affidavit of Darrel Graham of 21 July 2016, [50], exhibit 2, [41].

[108] Transcript 1-48.

[109] Ibid 1-60, 1-64.

[110] Exhibit 3, affidavit of David Lovell of 1 September 2018, [8]-[11].

[111] Ibid; Transcript 1-42.

[112] Exhibit 2, p 92, [34].

[113] Transcript 1-58 to 1-59.

[114] Ibid. Mr Graham stated that he was totally responsible for the feeding regime: Transcript 1-60.

[115] Ibid 1-58.

[116] Affidavit of Darrel Graham of 21 July 2016, exhibit 2, p 88, [9].

[117] Affidavit of 1 September 2018, exhibit 3, [18]-[19]; Transcript 1-39 to 1-40. 

[118] [2018] QCAT 161.

[119] Ibid [21].

[120] Ibid [44].

[121] [2018] QCAT 301.

[122] Ibid [93].

[123] [2017] QCAT 345.

[124] [2017] QCAT 236.

[125] Ibid [68]. 

[126] Ibid [92].

[127] Racing Appeals and Disciplinary Board (Original Jurisdiction), 16 March 2016, penalty 17 March 2016; referred to in the submissions of the applicant, 2 October 2018, [106].

[128] Ibid, decision of 17 March 2016, p11.

[129] [2017] VCAT 1620.  

[130] Ibid [40], [50].

[131] [2017] VCAT 1620, [65]. It was noted that in a list of cases provided to the Victorian Tribunal, in all but two of the cases the penalty imposed was disqualification rather than suspension: [63]. The number of cases was not disclosed.

[132] Harness Racing Victoria v Ross Graham (unreported, Racing Appeals and Disciplinary Board, 10 August 2017), referred to in the submissions of the applicant, 2 October 2018, [107].

[133] This case was referred to in the submissions of the applicant of 2 October 2018, [107]. However, there is little available information as to any findings as to culpability.

[134] [2017] VCAT 600.

[135] Ibid [42].

[136] Ibid [56].

[137] [2018] VCAT 1930.

[138] Ibid [33].

[139] Ibid [46].

[140] Ibid [51]. As to the onus in this context, see also McDonough v Harness Racing Victoria [2008] VRAT 6; Kavanagh v Racing Victoria Limited (No 2) (Review and Regulation) 2018] VCAT 291, [15]. 

[141] [2018] VCAT 1930, [60].

[142] [2019] VCAT 473.

[143] Ibid [52]. 144   Ibid [54].

[144] See for example, Day v Harness Racing NSW [2014] NSWSC 1402, [18]; Harness Racing Victoria v Chisholm [2017] VCAT 1620, [65]; Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161, [25].

[145]    See, for example, the references to that change in Demmler v Harness Racing Victoria [2017] VCAT 600, [49], [74]; Cole v Harness Racing Victoria [2018] VCAT 1930, [56]-[59]; Xuereb v Racing Victoria Limited (Review and Regulation) [2019] VCAT 473, [64]. As to the earlier view, see for example Day v Harness Racing NSW [2014] NSWSC 1402, [20]. 147   [2018] QCAT 161, [61]. 

[146] In addition to the prohibitions under rule 259 AHRR, by rule 256(5) a period of disqualification cannot be suspended. Though, by rule 259(6) the Controlling Body may make determinations waiving, varying of qualifying the prohibitions in rule 259.

[147] See also Demmler v Harness Racing Victoria Racing Appeals and Disciplinary Board (Review and Regulation [2017] VCAT 600, [77]-[80].

[148] Compare rule 259(1)(e), where, in relation to disqualification, it is made clear that a disqualified person cannot ‘race, lease, train, drive or nominate a horse’.

[149] However, counsel for the applicant provided the Tribunal with a copy of VCAT orders made on 3 July 2019 in McMahon v Harness Racing Victoria (unreported, VCAT reference: Z207/2019), in which the decision of the Racing Appeals Board was set aside and substituted with a decision that the applicant’ training licence be suspended for 12 months. No reasons for that decision are yet available. A ‘media release’, also provided by the applicant’s counsel, issued on 8 March following the decision of the Racing Appeals Board, notes that the Board had imposed a 12-month suspension of Ms McMahon’s trainers and drivers licence. 

[150] In Demmler v Harness Racing Victoria Racing Appeals and Disciplinary Board (Review and Regulation) [2017] VCAT 600, [77] consideration was given to the sort of activities that a suspended person could undertake.

Close

Editorial Notes

  • Published Case Name:

    Darrel William Graham v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Darrel William Graham v Queensland Racing Integrity Commission

  • MNC:

    [2019] QCAT 198

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    31 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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